Mattan v. Hoover Company

• Decision Date: 05 October 1942
• Docket Number: No. 38005.,38005.
• Parties: REMIE MATTAN v. THE HOOVER COMPANY, a Corporation, and RONALD LAGAN, Appellants.
• Court: Missouri Supreme Court

166 S.W.2d 557

REMIE MATTAN v. THE HOOVER COMPANY, a Corporation, and RONALD LAGAN, Appellants.

No. 38005.

Supreme Court of Missouri.

Division One, October 5, 1942.

Rehearing Denied, December 1, 1942.

Motion to Transfer to Banc Overruled, December 15, 1942.

Appeal from Jackson Circuit Court. — Hon. Brown Harris, Judge.

AFFIRMED (subject to remittitur of $5000).

Clay C. Rogers and Mosman, Rogers, Bell & Conrad for appellant, The Hoover Company; Louis R. Weiss for appellant, Ronald Lagan.

(1) The court erred in refusing to give the written peremptory instruction in the nature of a demurrer to plaintiff's evidence offered by the defendant, The Hoover Company, at the close of the evidence for the following reasons: the evidence failed to show that the defendant Lagan was, at the time of the occurrence, engaged in any service for defendant, The Hoover Company, or was in any way subject to its control; the evidence showed conclusively that the defendant Lagan was on his way to his own home on a mission of his own, and also, the evidence showed conclusively that Lagan was an independent contractor for whose torts The Hoover Company is not responsible, and therefore, the evidence failed to establish a submissible case against the defendant, The Hoover Company. State v. Myers, 152 Kan. 56, 102 Pac. (2d) 1023; Dohner v. Winfield Whsle. Groc., 116 Kan. 237, 226 Pac. 767; Hurla v. Capper Publications, 149 Kan. 369, 87 Pac. (2d) 552; Redfield v. Chelsea Coal Co., 136 Kan. 588, 16 Pac. (2d) 475; McCraner v. Nunn, 129 Kan. 802, 284 Pac. 603; Houdek v. Gloyd, 152 Kan. 789, 107 Pac. (2d) 756; Bass v. K.C. Journal Post, 347 Mo. 681, 148 S.W. (2d) 548; Skidmore v. Haggard, 341 Mo. 837, 110 S.W. (2d) 726; Reiling v. Mo. Ins. Co., 153 S.W. (2d) 79; Metropolitan Life Ins. Co. v. Gosney, 101 Fed. (2d) 167; Hall v. Sera, 112 Conn. 291, 152 Atl. 148; Manus v. K.C. Distrib. Corp., 228 Mo. App. 905, 74 S.W. (2d) 506; Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W. (2d) 718; Vert v. Metropolitan Life Ins. Co., 117 S.W. (2d) 252, 342 Mo. 629; Riggs v. Higgins, 341 Mo. 1, 106 S.W. (2d) 1; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W. (2d) 717; State ex rel. v. Hostetter, 115 S.W. (2d) 802; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Wesolowski v. John Hancock Mut. Life Ins. Co., 308 Pa. 117, 162 Atl. 166; American Natl. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W. (2d) 370; American Savings Life Ins. Co. v. Riplinger, 249 Ky. 8, 60 S.W. (2d) 115; Stockwell v. Morris, 46 Wyo. 1, 22 Pac. (2d) 189, 191; Barnes v. Real Silk Hosiery Mills, 108 S.W. (2d) 58, 341 Mo. 563; Green v. Western Union Tel. Co., 58 S.W. (2d) 772. (2) The evidence conclusively convicts plaintiff of contributory negligence as a matter of law; therefore the separate demurrers to the evidence of both defendants should have been sustained. Sec. 57, Chap. 283, Laws of Kan., 1937; Art. VIII, Sec. 71, Ordinance of Kansas City, Kansas; Buchhein v. Atchison, T. & S.F. Ry. Co., 147 Kan. 192, 75 Pac. (2d) 28; Earhart v. Tretbar, 148 Kan. 42, 80 Pac. (2d) 4; Crowder v. Williams, 226 Pac. 774; Hanabery v. Erhardt, 110 Kan. 715, 205 Pac. 352; Dempsey v. Horton, 337 Mo. 379, 84 S.W. (2d) 621; Wolfson v. Cohen, 55 S.W. (2d) 677. (3) The court erred in giving to the jury plaintiff's Instruction 1, directing a verdict for plaintiff, for the reason the instruction failed to submit any facts upon which a finding that there was any casual relation between the failure to have the vehicle equipped with lights as required by the ordinance, and the injury, and thus omits to submit to the jury facts necessary for a finding of the essential elements required to constitute actionable negligence. Carle v. Aiken, 87 S.W. (2d) 406; Stanich v. Western U. Tel. Co., 153 S.W. (2d) 53. (4) The court erred in the admission of testimony (a) of the witness, DeMoss; (b) the witness, Irene Williams; and (c) the witness Patterson which was hearsay and not binding on the appellant, The Hoover Company; and the court erred in overruling motions to strike out hearsay testimony of said witnesses. State ex rel. Kurz v. Bland, 333 Mo. 941, 64 S.W. (2d) 638; Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W. (2d) 947. (5) The verdict of the jury is grossly excessive. Johnson v. C. & E.I. Ry. Co., 334 Mo. 22, 64 S.W. (2d) 674; Evens v. Terminal R. Assn. of St. L., 69 S.W. (2d) 929; Miller v. Schaff, 228 S.W. 488; Greenwell v. Chicago, M. & St. P.R. Co., 224 S.W. 404; Fitzsimmons v. Mo. Pac. R. Co., 242 S.W. 915; Foster v. Davis, Dir. Gen., 252 S.W. 433; Sallee v. St. L. & S.F. Ry. Co., 12 S.W. (2d) 476; Thompson v. Q., O. & K.C. Ry. Co., 18 S.W. (2d) 401; Cole v. St. L. & S.F. Ry. Co., 61 S.W. (2d) 344; Reed v. Terminal R. Assn. of St. L., 62 S.W. (2d) 747; Stahl v. St. L. & S.F. Ry. Co., 287 S.W. 628.

O.H. Swearingen, Smith H. Brandom and W. Raleigh Gough for respondent.

(1) Plaintiff made a case on the issue of defendant Lagan's general employment by defendant Hoover Company, as a "servant" and not as an "independent contractor." American Law Institute, Agency Restatement, sec. 2; Bass v. Kansas City Journal Post Co., 347 Mo. 681, 148 S.W. (2d) 548; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W. (2d) 909; Cockran v. Rice, 26 S.D. 393, 128 N.W. 583, Ann. Cas. 1913B, 570; Skidmore v. Haggard, 341 Mo. 837, 110 S.W. (2d) 726; Wesolowski v. John Hancock Mut. Ins. Co., 308 Pa. 117, 162 Atl. 166, 87 A.L.R. 783; Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008; Semper v. American Press, 217 Mo. App. 55, 273 S.W. 186; Burgess v. Garvin, 219 Mo. App. 162, 272 S.W. 108. (2) The evidence presents a jury question on the issue of Lagan's driving the automobile within the course and scope of his employment, at the time of the accident. Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W. (2d) 947; Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W. (2d) 718. (3) There was no error in the admission of evidence. (a) It was not error to admit the testimony of the witnesses DeMoss and Williams as to statements by Lagan that he was on his way to make a demonstration. Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W. (2d) 718; 31 C.J.S., pp. 1007-1009, sec. 256. (b) There was no error in admission of testimony of the witness Patterson as to telephone conversation. Shelton v. Wolf Cheese Co., 338 Mo. 1129, 93 S.W. (2d) 947. (4) Plaintiff was not guilty of contributory negligence, as a matter of law. Hoelker v. American Press, 317 Mo. 64. 296 S.W. 1008. (5) There was no error in the giving of plaintiff's Instruction 1. Maloney v. United Rys. Co., 237 S.W. 509; Berryman v. Southern Surety Co., 285 Mo. 379, 227 S.W. 96: Williams v. Hyman-Michaels Co., 277 S.W. 593: Ducoulombier v. Baldwin. 101 S.W. (2d) 96. (6) The verdict is not excessive. Dodson v. Gate City Oil Co., 338 Mo. 183, 88 S.W. (2d) 866: Christopher v. Chicago, B. & O.R. Co., 55 S.W. (2d) 449; Davis v. Buck's Stove & Range Co., 329 Mo. 1177, 49 S.W. (2d) 47: Cotton v. Ship-By-Truck Co., 85 S.W. (2d) 80; Berry v. Baltimore & O.R. Co., 43 S.W. (2d) 782: Hughes v. Schmidt, 325 Mo. 1099, 30 S.W. (2d) 468; Woods v. St. Louis Merchants' Bridge Terminal Ry. Co., 8 S.W. (2d) 922.

BRADLEY, C.

Action for damages, actual and punitive, for personal injuries caused by being struck by an automobile driven by defendant Lagan, alleged servant of the corporate defendant. The jury returned a verdict for $20,000 actual damages against both defendants and judgment was entered thereon. Motion for new trial was overruled and defendants appealed.

Plaintiff was struck about 6:15 P.M., after dark, clear night, January 19, 1940, while walking across State street in Kansas City, Kansas. The cause was submitted, under the law of Kansas, upon the alleged negligent failure to equip the automobile with proper headlights, or failure to warn of the automobile's approach by sounding the horn.

Defendants answered separately by general denial and a plea of contributory negligence, and the defendant Hoover Company further alleged that Lagan was not its servant, as that term is defined in the law, and that if he were, he was not, at the time plaintiff was injured, on any business or mission for it. The reply put in issue the new questions raised in the answers.

Error is assigned (1) on the refusal of an instruction in the nature of a demurrer to the evidence; (2) on plaintiff's instruction No. 1; (3) on the admission of evidence; and (4) on an alleged excessive verdict.

The demurrer to the evidence raised three questions: (1) Was there substantial evidence to support the alleged negligence upon which the cause was submitted; (2) Was plaintiff guilty of contributory negligence as a matter of law? and (3) (as to defendant Hoover Company) Did the relation of master and servant exist between defendant Lagan and the Hoover Company, and if so, was Lagan, at the time of plaintiff's injury, acting within the scope of his employment?

[1] Error is not assigned on the insufficiency of the evidence to support the negligence charged, hence the first question, under the demurrer, is: Was plaintiff guilty of contributory negligence as a matter of law?

We might say that defendant offered no evidence, and that all the witnesses were called by plaintiff.

State street, in Kansas City, Kansas, is an east and west street and, at the place where plaintiff was injured, is about 45 feet in width. Plaintiff was walking north across the street at a point about midway between 9th street on the east and 10th street on the west. The street was covered with ice and snow, and a snow plow had piled snow and ice in the center of the street. On either side of the pile in the center were vehicle tracks or ruts in the snow and ice made by the east and west bound traffic. There were street lights on State street at 9th and 10th streets, but there were no street lights on State between 9th and 10th. Plaintiff was going to a house, No. 906, on the north side of State street in front of...